FEDERAL COURT OF AUSTRALIA

Banks v State of Western Australia [2009] FCA 703

NATIVE TITLE - application twice failed registration test - Court’s discretionary power to dismiss application on its own motion - no amendment actual or foreshadowed since consideration by Registrar - no likelihood of application being amended in such a way as to lead to a different outcome once considered by Registrar - no other reason why application ought not be dismissed - application dismissed.

Native Title Act 1993 (Cth), ss 190A, 190B, 190C, 190D, 190E(1), 190F(1), (5), (6)

Native Title Amendment Act 2007 (Cth) Item 90   

TANBA BANKS v STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK,

RAYMOND WALLABY, JACK BRITTEN and QUEENIE McKENZIE,

AC PILKINGTON PTY LTD (ALICE DOWNS STATION), CG GREEN PTY LTD, ME GREEN PTY LTD (TEXAS DOWNS STATION), SOPHIE DOWNS STATION PTY LTD, THE NICHOLSON GRAZING COMPANY PTY LTD and TELSTRA CORPORATION LIMITED   

WAD 6199 of 1998

GILMOUR J

15 JUNE 2009

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             I dismissed the application on 15 June 2009 at which time I indicated I would provide my reasons in due course.  The following are the reasons for dismissing the application.

2                                             This matter was listed before me at the Kimberley Regional Review Hearing on 8 December 2008.  On that occasion I made orders that:

1.         The applicant file and serve on the respondents’ representatives in Court today submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act 1993 (Cth) on or before 16 February 2009.

2.         Any party wishing to respond to such submissions to file and serve its response on the applicant by 16 March 2009.

3                                             A copy of those orders was provided to the parties under cover of correspondence from the Court dated 17 December 2008, however no submissions have been filed. It is my understanding that the Court has made attempts to contact the applicant in regard to the directions hearing today, without success.  

STATUTORY FRAMEWORK

4                                             Section 190F(6) of the Native Title Act 1993 (Cth) (“the Act”) confers a discretionary power on the Court to dismiss an application, either on the application of a party or on its own motion, if:

(a)        the Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (the Registrar), and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

(b)        in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

5                                             The new dismissal power applies pursuant to s 190F(5) where:

(a)        the Registrar does not accept the claim for registration either because:

            (i)         it does not satisfy all the merit conditions of the registration test in s 190B; or

            (ii)        it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and

(b)        the Court is satisfied that the avenues for reconsideration and review have all been exhausted without registration of the claim.

6                                             An application for review must be filed within 42 days of the notification of the Registrar’s decision: Order 78 r 12 of the Federal Court Rules.  

7                                             If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application. 

8                                             The Court may consider any ‘other reason’ why an application should not be dismissed: s 190F(6).  

THE APPLICATION

9                                             The Jiddngarri application was first lodged with the National Native Title Tribunal on 16 September 1997 however, it was taken to be an application to the Federal Court, as a result of the amendment to the Act on 30 September 1998. 

10                                          The application relates to part of the Kimberley region of Western Australia.  The registration test was first applied to the claim on 23 August 1999 and it was determined, pursuant to s 190A of the Act, that the application should not be accepted for registration.

11                                          Item 90 of the transitional provisions of the Native Title Amendment Act 2007 identified Jiddngarri as belonging to a class of claims that had to have the registration test re-applied.  Following this on 16 November 2007 a delegate of the Native Title Registrar (“the Delegate”) did not accept the claim for registration pursuant to s 190A of the Act.  For the purposes of s 190D the Delegate was of the opinion that is was not possible to determine whether the claim satisfied the conditions in s 190B because of a failure to satisfy s 190C.

12                                          There has been no application to the Tribunal by the applicant pursuant to s 190E(1) of the Act for reconsideration of the Delegate’s decision nor an application to this Court pursuant to s 190F(1) for review of the decision.

13                                          Since consideration by the Delegate, the applicant has not moved or indicated he intends to move to amend the application.  There is nothing to suggest that the application is likely to be amended in such a way as would lead to any different conclusion being reached by the Registrar’s delegate.  There does not appear to be any other reason why the application should not be dismissed. 

14                                          There is of course no barrier to the applicant filing a further claim in the future.

15                                          The application should be dismissed.

Associate:

Dated:         1 July 2009